For purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ARCADE. A commercial establishment to which the public is permitted or invited that maintains booths or rooms smaller than 100 square feet wherein image-producing devices are regularly maintained to show images characterized by their emphasis upon matter exhibiting "specified sexual activities" or "specified anatomical areas”.
ADULT BOOKSTORE. A commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas”. A "principal business activity" exists where the commercial establishment meets any one or more of the following criteria:
(1) At least 35% of the establishment’s displayed merchandise consists of said items, or
(2) At least 35% of the establishment’s revenues derive from the sale or rental, for any form of consideration, of said items, or
(3) The establishment maintains at least 35% of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items, as well as cashier stations where said items are rented or sold, shall be included in "floor space" maintained for the display, sale, or rental of said items); or
(4) The establishment maintains at least 500 square feet of its floor space for the display, sale, and/or rental of said items (aisles and walkways used to access said items, as well as cashier stations where said items are rented or sold, shall be included in "floor space" maintained for the display, sale, or rental of said items); or
(5) The establishment regularly offers for sale or rental at least 500 of said items.
ADULT CABARET. A nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly offers live semi-nude conduct. No establishment shall avoid classification as an adult cabaret by offering nude conduct.
ADULT MOTION PICTURE THEATER. A commercial establishment to which the public is permitted or invited that maintains viewing rooms that are 100 square feet or larger wherein films or videos characterized by their emphasis upon "specified sexual activities" or "specified anatomical areas" are regularly shown.
CHARACTERIZED BY. Describing the essential character or quality of an item. As applied in this chapter, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.
CITY. The city of Fort Wayne, Indiana.
COMMON COUNCIL. The Common Council of the City of Fort Wayne, Indiana.
EMPLOY, EMPLOYEE, AND EMPLOYMENT. These terms describe and pertain to any person who works or engages in activity for pay on the premises of a sexually oriented business, on a full time, part time, temporary, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, lessee, or otherwise. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
ESTABLISH OR ESTABLISHMENT. Any of the following:
(1) The opening or commencement of any sexually oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; or
(3) The addition of any sexually oriented business to any other existing sexually oriented business.
FLOOR SPACE. The floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms.
HEARING OFFICER. An attorney, not an employee of the city, who is licensed to practice law in Indiana, and retained to serve as an independent tribunal to conduct hearings under this chapter.
INFLUENTIAL INTEREST. The actual power to control or influence the operation, management, or policies of the sexually oriented business or legal entity which operates the sexually oriented business. An individual is deemed to have an INFLUENTIAL INTEREST if he or she (1) is the on-site general manager of the sexually oriented business, (2) owns a financial interest of 30% or more of a business or of any class of voting securities of a business, or (3) holds an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the sexually oriented business.
LICENSEE. A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business license. In the case of an "employee," it shall mean the person in whose name the sexually oriented business employee license has been issued.
NUDITY OR NUDE CONDUCT. The showing of the human male or female genitals, pubic area, vulva, or anus with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola. For purposes of this chapter, a "fully opaque covering" must be non-flesh colored, shall not consist of any substance that can be washed or peeled off the skin (such as paint, make-up, or latex), and shall not simulate the appearance of the anatomical area that it covers.
OPERATE. To cause to function or to put or keep in a state of doing business.
OPERATOR. Any person on the premises of a sexually oriented business who manages, supervises, or controls the business or a portion thereof. A person may be found to be an OPERATOR regardless of whether such person is an owner, part owner, or licensee of the business.
PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.
POLICE CHIEF. The Chief of the Fort Wayne Police Department or his or her designee.
PREMISES. The real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a sexually oriented business license.
REGIONAL SHOPPING MALL (ENCLOSED). A group of retail and other commercial establishments that is planned, developed, and managed as a single property, with on-site parking provided around the perimeter of the shopping center, and that is generally at least forty acres in size and flanked by two or more large "anchor" stores, such as department stores. The common walkway or "mall" is enclosed, climate-controlled and lighted, usually with an inward orientation of the stores facing the walkway.
REGULARLY. The consistent and repeated doing of an act on an ongoing basis.
SEMI-NUDE OR SEMI-NUDITY. The showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.
SEXUAL DEVICE. Any three dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, nipple, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily designed for protection against sexually transmitted diseases or for preventing pregnancy.
SEXUAL DEVICE SHOP. A commercial establishment:
(1) Where more than 100 sexual devices are regularly made available for sale or rental; or
(2) Where sexual devices are regularly made available for sale or rental and the establishment regularly gives special prominence to sexual devices (e.g., by using lighted display cases for sexual devices, having a room or discrete area of the establishment significantly devoted to sexual devices, positioning sexual devices near cash registers or similar points of sale, hosting events focused on sexual devices, or holding itself out to the public as a place that focuses on sexual devices).
This definition shall not be construed to include an establishment located within an enclosed regional shopping mall, an establishment containing a pharmacy that employs a licensed pharmacist to fill prescriptions on the premises, or an establishment primarily dedicated to providing durable medical equipment.
SEXUALLY ORIENTED BUSINESS. An "adult arcade," an "adult bookstore," an "adult cabaret," an "adult motion picture theater," or a "sexual device shop”.
SPECIFIED ANATOMICAL AREAS. Any of the following:
(1) Less than completely and opaquely covered: human genitals, pubic region; buttock; and female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED CRIMINAL ACTIVITY. Any of the following specified crimes for which less than five years has elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:
(1) Rape, sexual assault, public indecency, statutory rape, rape of a child, sexual exploitation of a minor, indecent exposure;
(2) Prostitution, patronizing prostitution, promoting prostitution;
(3) Obscenity;
(4) Dealing in controlled substances;
(5) Racketeering, tax evasion, money laundering;
(6) Any attempt, solicitation, or conspiracy to commit one of the foregoing offenses; or
(7) Any offense in another jurisdiction that, had the predicate act(s) been committed in Indiana, would have constituted any of the foregoing offenses.
SPECIFIED SEXUAL ACTIVITY. Any of the following:
(1) intercourse, oral copulation, masturbation or sodomy; or
(2) excretory functions as a part of or in connection with any of the activities described in (1) above.
TRANSFER OF OWNERSHIP OR CONTROL. Any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute an influential interest in the business, whether by sale, exchange, or similar means; or
(3) The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
VIEWING ROOM. The room or booth where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video on an image-producing device.
(Ord. G-19-19, passed 8-13-19)